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Duffey v. Workers' Compensation Appeal Board (Trola-Dyne, Inc.)

Supreme Court of Pennsylvania

January 19, 2017


          ARGUED: September 14, 2016

         Appeal from the Order of the Commonwealth Court at No. 1840 CD 2014 dated 6/26/15 affirming the decision of the Workers' Compensation Appeal Board at Nos. A13-0229 and A13-1158 dated 9/16/14



         The issue in this workers' compensation appeal is ultimately whether a notice of compensation payable closely circumscribes the range of health-related conditions to be considered in impairment rating evaluations.

         Appellant Michael C. Duffey ("Claimant") sustained injuries to his hands when he picked up electrified wires while repairing a machine for Appellee, Trola-Dyne, Inc. ("Employer"). Employer issued a notice of compensation payable (the "NCP") per Sections 406.1 and 410 of the Workers' Compensation Act, [1] 77 P.S. §§717.1, 731, which indicated that the "[b]ody [p]art(s) affected" were "bilateral hands"; the type of injury was "electrical burn"; and the description of the injury was "stripping some electrical wire."

         On March 6, 2011, after Claimant had received benefits for total disability for a period of 104 weeks, Employer requested an impairment rating evaluation pursuant to Section 306(a.2)(1) of the Act, 77 P.S. §511.2(1).[2] In its request for designation of a physician to perform the evaluation per the applicable administrative regulations, see 34 Pa. Code §123.104, Employer described the underlying compensable injury as "bilateral hands-nerve and joint pain."

         A few months later, Claimant submitted to an impairment rating evaluation (the "IRE") by Bruce E. Sicilia, M.D. (the "Physician-Evaluator"), a specialist in physical medicine and rehabilitation. The Physician-Evaluator assigned a whole-body impairment rating of six percent, prompting Employer to issue a notice informing Claimant that his disability status would change from total to partial.[3] This modification did not decrease the amount of Claimant's weekly benefits, see 77 P.S. §511.2(3) ("Unless otherwise adjudicated or agreed to based upon a determination of earning power . . ., the amount of compensation shall not be affected as a result of the change in disability status and shall remain the same."), but instead, had the effect of limiting Claimant's receipt of benefits to a 500-week period, see id. §512(1) (prescribing that partial disability benefits are to be paid "for not more than five hundred weeks").

         Claimant proceeded to file a review petition attacking the validity of the IRE. Claimant did not aver that there had been a determination that he actually met the threshold impairment rating of at least 50 percent, as facially is required to support a challenge to an IRE under Section 306(a.2). See id. §511.2(4) ("An employe may appeal the change to partial disability . . . [p]rovided, [t]hat there is a determination that the employe meets the threshold impairment rating that is equal to or greater than fifty per centum impairment[.]"). Nevertheless, Claimant proceeded under prevailing Commonwealth Court precedent holding that such requirement does not pertain where the challenge is lodged, as it was here, within 60 days after the employer provides the claimant with notice of the status change from total to partial disability. See Barrett v. WCAB (Sunoco, Inc.), 987 A.2d 1280, 1288-89 (Pa. Cmwlth. 2010).[4] It was Claimant's position that the Physician-Evaluator had failed to rate the full range of work-related injuries, since Claimant suffered from adjustment disorder with depressed mood and chronic post-traumatic stress disorder as a result of his work injury.[5]

         At hearings before a workers' compensation judge (the "WCJ"), Claimant adduced his own testimony concerning the circumstances surrounding his injury and his initial and ongoing symptoms and treatment. According to this testimony, Claimant developed, and continued to experience, impairment in the use of his hands, agonizing deep pain, and debilitating exhaustion. See, e.g., N.T., Dec. 16, 2011, at 7-8.

         Claimant later supplemented the record with deposition testimony from his family physician, Debra A. Bell, M.D., who had diagnosed Claimant with the adjustment disorder with depressed mood and chronic post-traumatic stress disorder and treated him for such conditions. See Deposition of Debra A. Bell, M.D., dated Mar. 20, 2012, in Duffy v. Trola-Dyne Inc., No. 3485314 (DLI, Bur. of Workers' Comp.), at 16, 18. Claimant also introduced deposition testimony from a neurologist, Scott M. Cherry, M.D., who attested that Claimant's injury had evolved into a disabling, chronic neuropathic pain syndrome attended by emotional and cognitive changes. See Deposition of Scott M. Cherry, M.D., dated Dec. 9, 2011, in Duffy, No. 3485314, at 14, 16, 19, 33.

         Employer presented the Physician-Evaluator's testimony supporting the rating evaluation that he conducted. The Physician-Evaluator explained that, in addition to accounting for Claimant's physical condition, he also considered Claimant's complaints of pain, encompassing "work-related chronic neuropathic pain syndrome, " Deposition of Bruce E. Sicilia, M.D., dated July 27, 2012, in Duffy, No. 3485314, at 23, 25, rating the condition according to a sensory impairment table provided in the governing impairment guidelines, see id. at 24. See generally 77 P.S. §511.2(1) (keying impairment rating evaluations to "the most recent edition of the American Medical Association 'Guides to the Evaluation of Permanent Impairment'"). According to the Physician-Evaluator, however, the rating did not account for asserted work-related adjustment disorder or post-traumatic stress syndrome. In this regard, the Physician-Evaluator offered the following explanation:

I am not a psychiatrist and I don't have appropriate skills, if you will, to do that type of assessment. And I was specifically asked to assess his electrical burn injuries and I did that.

         Deposition of Bruce E. Sicilia, M.D., dated July 27, 2012, in Duffy, No. 3485314, at 31.

         A clinical and forensic psychiatrist, Timothy J. Michals, M.D., also testified, via deposition on Employer's behalf, that he had evaluated Claimant and concluded that he had recovered from the adjustment disorder with anxiety and depressed mood. See Deposition of Timothy J. Michals, M.D., dated Aug. 1, 2012, in Duffy, No. 3485314, at 26-27. Dr. Michals further expressed his disagreement with the diagnosis of post-traumatic stress disorder. See id. at 32-34.

         The WCJ accepted Claimant's evidence as credible and rejected Employer's conflicting evidence, directed that Claimant's psychological conditions should be added to the notice of compensation payable, and determined that the IRE was invalid, because the Physician-Evaluator had not addressed those conditions. Accordingly, the WCJ also found that the total-disability status assigned to Claimant's benefits could not be modified.

         On appeal, the Workers' Compensation Appeal Board reversed the decision to invalidate the IRE, reasoning that a physician-evaluator may properly limit an impairment rating evaluation according to the accepted injuries as reflected in a notice of compensation payable. Along these lines, the Board observed that Claimant had not sought to amend the NCP to include additional injuries in a timely fashion, but instead, waited to do so until almost six months after the IRE was performed. The Board thus held that the six percent impairment rating assigned by the Physician-Evaluator was valid and, accordingly, modified the status of Claimant's benefits from total to partial disability.

         On further appeal, the Commonwealth Court affirmed the Board's order in a published opinion. See Duffey v. WCAB (Trola-Dyne, Inc.), 119 A.3d 445 (Pa. Cmwlth. 2015). From the outset of its analysis, the intermediate court emphasized that Section 306(a.2) requires a determination of the degree of impairment "due to the compensable injury." Id. at 450 (emphasis in original). The court then focused most of its remaining analysis on the "compensable injury" component of this phrase, explaining that the notice of compensation payable establishes the description of the work injury. See id. at 451 (quoting Harrison v. WCAB (Auto Truck Transp. Corp.), 78 A.3d 699, 703 (Pa. Cmwlth. 2013)). In light of this approach -- and given that an impairment rating evaluation involves an assessment of a claimant's condition at the time of the evaluation, see id. (quoting Westmoreland Reg'l Hosp. v. WCAB (Pickford), 29 A.3d 120, 128 (Pa. Cmwlth. 2011)) -- the court indicated that "the focus in determining the validity of an [impairment rating evaluation] is on the state of the claimant and the compensable injury, as described in the [notice of compensation payable] at the time the [impairment rating evaluation] is performed." Id. (emphasis in original).

         After distinguishing several previous decisions, the Commonwealth Court expressed its disinclination to "believe that the General Assembly intended to nullify an already performed and otherwise valid IRE by claims of new or additional injuries that were not yet determined to be work-related and, therefore, would not have been addressed by the [evaluating] physician." Id. at 452. To hold otherwise, the court posited, would contravene the reform goals of the 1996 amendment to the WCA which had implemented Section 306(a.2). See id. at 452-53.

         Along these lines, the Commonwealth Court suggested that a contrary holding would encourage claimants to effectively sabotage impairment rating evaluations. See id. at 453 ("The delay in adding injuries as a litigation strategy to defeat an [impairment rating evaluation] performed under Section 306(a.2) does not serve the purpose of the IRE process or the 1996 Amendments to the Act."). In this respect, the intermediate court stressed that an employer has only a single opportunity to obtain a self-executing change of a claimant's status from total to partial disability. See id. ("Claimant's position would effectively strip Employer of its only opportunity to obtain a self-executing change in disability status, by adding injuries to the [notice of compensation payable] after the IRE is performed and having the IRE declared invalid."). According to the court, claimants should be encouraged to be proactive in updating notices of compensation payable so that their constellation of injuries can be considered in impairment rating evaluations. See id.[6]

         We find the outcome of this case to be controlled by straightforward statutory interpretation, a matter over which our review is plenary. See, e.g., Fish v. Twp. of Lower Merion, __Pa.__, __, 128 A.3d 764, 769 (2015). At the outset, we reiterate that a pervasive focus on "compensable injury" has obscured an important aspect of the governing statute. See supra note 5. In this regard, Section 306(a.2) explicitly invests in physician-evaluators the obligation to "determine the degree of impairment due to the compensable injury, " 77 P.S. §511.2(1) (emphasis added). Per such express terms, a physician-evaluator must consider and determine causality in terms of whether any particular impairment is "due to" the compensable injury. Id. Moreover, the required evaluation is of "the percentage of permanent impairment of the whole body resulting from the compensable injury." 77 P.S. §511.2(8)(ii).

         We have no difference with the Commonwealth Court's reasonable holding that a notice of compensation payable should define "compensable injury" for purposes of this inquiry. Such recognition, however, simply does not determine the range of impairments which may be "due to" such injury. Under Section 306(a.2) and the applicable impairment guidelines, the physician-evaluator must exercise professional judgment to render appropriate decisions concerning both causality and apportionment. See id.; accord Am. Med. Ass'n, Guides to the Evaluation of Permanent Impairment, Ch. 2, Introduction (6th ed. 2009) (the "AMA Guides") ("Physicians must use their clinical knowledge, skills, and abilities to arrive at a specific diagnosis; define the pathology; and rate impairments based on the Guides' criteria.").[7]

         It is noteworthy that causation, for purposes of the AMA Guides, is assessed, in the first instance, by reference to an "event" rather than an "injury, " thus creating some potential tension with Section 306(a.2)'s focus on causal association with a compensable injury. See AMA Guides §2.5b ("Causality is an association between a given cause (an event capable of producing an effect) and an effect (a condition that can result from a specific cause) with a reasonable degree of medical probability."). But cf. id. Ch. 2, Introduction (depicting the AMA Guides as a "tool to translate human pathology resulting from a trauma or disease process into a percentage of the whole person"). Accordingly, there may be some basis in the AMA Guides permitting a physician-evaluator to attribute a claimant's psychological disorders to the event in which the claimant was was injured, rather than to the compensable injury itself. Again, however, a physician-evaluator simply may not entirely disavow any and all responsibility to consider causality relative to a given condition. See 77 P.S. §511.2(1).[8]

         Here, it is apparent from the record that the Physician-Evaluator did not apply professional judgment to assess (or, per the applicable regulations, arrange for an assessment of) the psychological conditions identified by Claimant during the IRE examination;[9] nor did he determine whether such conditions as might have been diagnosed were fairly attributable to Claimant's compensable injury. Instead of abiding by the directives of Section 306(a.2) and the AMA Guides in such regards, the Physician-Evaluator purported to take a different set of instructions from Employer. See Deposition of Bruce E. Sicilia, M.D., dated July 27, 2012, in Duffy, No. 3485314, at 31 ("I was specifically asked to assess his electrical burn injuries and I did that."). Proceeding as such, the Physician-Evaluator simply ignored a range of potential diagnoses and impairments. See, e.g., id. at 15 (reflecting the evaluator's testimony that Claimant's depression "was not rateable [sic] at the time because I was not asked to rate it." (emphasis added)). Again, however, the Physician-Evaluator was bound to take his guidance, not from Employer, but from Section 306(a.2) and the AMA Guides. See AMA Guides §2.3b ("As an impairment evaluator, the physician must understand the regulations pertaining to medical practice and evaluation."); id. Chapter 2, Introduction ("Physicians must use their clinical knowledge, skills, and abilities to arrive at a specific diagnosis; define the pathology; and rate impairments based on the Guides' criteria.").

         The Commonwealth Court's opinion may reflect a pragmatic approach in requiring claimants manifesting psychological symptoms deriving from a compensable injury to address the causality question in advance of an impairment rating evaluation. There may obviously be an attendant concern that the alternative is to require psychological assessments in the broader range of impairment rating evaluations.

         There are competing considerations involved, however. For example, injuries often are depicted briefly, and even cryptically, on notices of compensation payable.[10]Furthermore, benefits ultimately cease as a result of an unfavorable rating evaluation, although a claimant may remain, in conventional terms, totally disabled and unable to provide for his or her own well-being. See generally IA Constr., __Pa. at__, 139 A.3d at 155 (discussing the distinction between impairment and disability in terms of the focus of the latter term on loss of earnings capacity); AMA Guides §2.3b (reflecting that the object of the impairment rating process is "to enable a fair and competent determination of benefits to which the [subject of the evaluation] may be entitled").

         Moreover, per the AMA Guides, as a matter of clinical judgment, a physician-evaluator may, where appropriate, treat the impairment rating pertaining to a particular organ or body system as encompassing a whole body assessment. See AMA Guides §§2.2a, 14.1c (reflecting the general rule that "[t]he psychological distress associated with a physical impairment is . . . included within the rating" for a physical condition (emphasis in original)). In point of fact, the AMA Guides rather pointedly discourage separate treatment of psychological effects. See AMA Guides §14.1c ("In most cases of a mental and behavioral disorder accompanying a physical impairment, . . . the mental and behavioral disorder chapter should not be used." (emphasis added)). In this regard, it devolves to the physician-evaluator's sound professional judgment whether, and under what circumstances, psychological conditions effectively graduate to distinct consideration per the AMA Guides' mental-and-behavioral-disorders protocols.[11]

         In all events, the evaluative judgment is the touchstone on these subjects, as well as on the topic of causality. In the present case, since the Physician-Examiner failed to exercise such judgment based on a misunderstanding concerning the scope of his responsibilities, the WCJ did not err in invalidating the IRE.

         The dissenting opinion authored by Justice Wecht chastises this opinion on multiple fronts, asserting that we have: exceeded the scope of the issues presented; ignored the statutory definition of "impairments"; compromised the impairment-rating process; inappropriately misallocated decision-making responsibility relative to causation from workers' compensation judges to physician-evaluators; and disregarded the significance of the fourth edition of the AMA Guides to the Evaluation of Permanent Impairment.

         Regarding the issue preservation concern, Justice Wecht characterizes the question presented as a narrow one limited to the following:

Does an amendment that expands the injury description on a notice of compensation payable ("NCP") invalidate an impairment rating evaluation ("IRE") that was conducted before the amendment?

Dissenting Opinion, slip op. at 1 (Wecht, J.). In point of fact, however, the issue accepted for review is framed in a considerably different fashion, see Duffey v. WCAB (Trola-Dyne, Inc.), __Pa.__, __, 131 A.3d 480, 481 (2016) (per curiam), as are the arguments in Claimant's brief.[12]

         While, as we have previously explained, the issue statement and Claimant's arguments are clouded by a conflation of the terms "injury" and "impairment, " see supra note 5, Claimant's brief otherwise makes clear that he is advancing the position that a physician-evaluator has an obligation "to address all work-related conditions at the time of the evaluation." Brief for Appellant at 19 (emphasis added).[13] Unfortunately, the difficulty with the terms "injury" and "impairment" arises from the complexity of these overlapping and intersecting -- but also diverging -- concepts. See, e.g., supra note 10.[14] Indeed, such conflation appears to be quite common. See, e.g., Dissenting Opinion, slip op. at 1 (Wecht, J.) (incorrectly asserting that the holding of this opinion is that physicians must assess all of the claimant's "injuries, " when in point of fact, we have repeatedly explained that the statutorily prescribed duty is simply to assess "the degree of impairment due to the compensable injury" on a "whole body" basis, 77 P.S. §511.2(1), (8)(ii) (emphasis added)).

         As a more general observation, a Court of last resort must have some leeway to make rational judgments and pronouncements that are not strictly confined according to the precise letter of parties' arguments. Otherwise, the law would be shaped according to the nuances of the litigants' presentations, including the extremes toward which they sometimes press their positions within the adversary system. Such latitude is particularly appropriate in matters involving statutory construction, where the language of the governing statute ultimately must remain the polestar for rulings having widespread application. Again, from our point of view, Claimant's position sufficiently implicates a plain-meaning interpretation of Section 306(a.2), and ...

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